Attorney General of New South Wales v Cooper (by his tutor Stephen Stuart) (Final)

[2024] NSWSC 1545

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Attorney General of New South Wales v Cooper (by his tutor Stephen Stuart) (Final) [2024] NSWSC 1545

Hearing dates:

05 November 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

(1) Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that Mr Raymond John Cooper (also known as Mr Raymond Elliott) be subject to an order for the extension of his status as a forensic patient for a period of two (2) years commencing on 4 December 2024 to continue to 3 December 2026.

(2) Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

Catchwords:

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – forensic patient – extension order – final hearing – history of child abuse material offending – index offences of use carriage service to access and possess child abuse material and contravene prohibition order and fail to comply with reporting obligations – where experts of opinion that patient should remain a forensic patient – whether Court satisfied to high degree of probability that there is unacceptable risk of causing serious harm to others – where serious harm includes psychological harm – where there is an unacceptable risk of serious psychological harm to child participants in child abuse material that is viewed or copied or shared or accessed – where accessing child abuse material perpetuates a market and creates an unacceptable risk of causing serious harm to children used in the creation of new child abuse material – where risk cannot be adequately managed by less restrictive means – extension order granted for period of two years

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ss 5, 13

Child Protection (Offenders Registration) Act 2000 (NSW) s 17

Crimes Act 1900 (NSW) ss 20BA, 61E

Crimes Act 1914 (Cth) s 20BA

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code Act 1995 (Cth) ss 474.22, 474.22A

Mental Health Act 2007 (NSW) s 14

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 62, 69, 72, 121-128, 130, 131

Cases Cited:

Attorney General for New South Wales v Skerry(by his tutor Thompson) (Final) [2018] NSWSC 1711

Attorney General of New South Wales v Cooper (Preliminary) [2024] NSWSC 1083

Attorney General of New South Wales vKereopa(No 2) [2017] NSWSC 928

Attorney General of New South Wales v Lane (Final) [2019] NSWSC 1460

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

R v Booth [2009] NSWCCA 89

R v De Leeuw [2015] NSWCCA 183

R v Porte [2015] NSWCCA 174

State of New South Wales v Chaplin [2019] NSWSC 471

State of New South Wales v Devaney (Final) [2022] NSWSC 60

State ofNew South Wales vKamm(Final) [2016] NSWSC 1

State ofNew South Wales v Simcock(Final) [2016] NSWSC 1805

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Attorney General of New South Wales (Plaintiff)
Raymond John Cooper by his tutor Stephen Stuart (Defendant)

Representation:

Counsel:
S Love (Plaintiff)
C Goodhand (Defendant)

Solicitors:
J Murty (Plaintiff)
M Iskander (Defendant)

File Number(s):

2024/00205940

Publication restriction:

Nil

JUDGMENT

1. By summons filed on 3 June 2024, the Attorney General of New South Wales (“the plaintiff”) seeks an order, by way of final relief, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) against Mr Raymond John Cooper (also known as Mr Raymond Elliott) (“the defendant”), who appears by his tutor, Stephen Stuart, to extend the defendant’s status as a forensic patient for a period of two years.

2. The plaintiff read, in support of the final orders, affidavits of Jessica Leigh Murty affirmed on 3 June 2024, 30 July 2024 and 21 October 2024, together with a risk assessment report prepared by Dr Anna Farrar, Forensic Psychiatrist dated 8 February 2024. The defendant relied upon the affidavits of Marie Iskander affirmed on 31 July 2024, 29 October 2024 and 4 November 2024.

Procedural history and background

3. On 27 August 2024, Rigg J made orders pursuant to s 126(5)(a) of the Act for the examination of the defendant and preparation of reports, and, further, an order pursuant to ss 130 and 131 of the Act that he be subject to an interim extension order (“Interim Order”) for a period of three months: Attorney General of New South Wales v Cooper (Preliminary) [2024] NSWSC 1083. The Interim Order commenced at the expiry of the defendant’s limiting term on 4 September 2024 for a period of 3 months and will expire at midnight on 3 December 2024.

4. Pursuant to Rigg J’s orders, two reports were prepared, one by Dr Carollyne Youssef, dated 13 October 2024, and the other by A/Professor Rajan Darjee, dated 13 October 2024. These reports will be considered further below.

The defendant

5. The defendant was born in Manly NSW on 31 August 1971 and is currently 53 years old.

6. The defendant was diagnosed with an intellectual disability and is also reported to have received a diagnosis of acquired brain injury due to a head injury sustained as an adult. He has a mild hearing impairment and a significant speech impediment which he has had since childhood.

7. The defendant has found the speech impediment to have been extremely frustrating. In 1997, one psychologist commented that it is “beyond the capacity of the average person to appreciate the enormous stress associated with a speech impediment of the severity” experienced by the defendant. This was said in the context of discussing the defendant’s explosive outbursts of temper and expression of frustrations.

8. When testing his cognitive functioning over the years, the defendant has generally been placed in the mild to moderate range of intellectual disability. This has been compounded by his acquired brain injury. It is reported that the defendant has difficulties understanding abstract concepts, conceptualising future or hypothetical situations and evaluating costs and benefits of decisions. He also has difficulties with problem solving, emotional regulation, impulse inhibition, applying insight and consequential thinking and retaining information, and he is reported to have a tendency for “concrete” as opposed to “abstract” concepts. He finds navigating the subtleties of interpersonal relationships and social norms challenging and his capacity for insight and self-reflection is limited.

9. Reports have consistently found that the defendant does not have a mental illness.

10. The defendant was the only child to his parents’ union. His mother had three other children. The defendant is reported to have been exposed to abuse as a child including neglect and physical abuse. His father is reported to have died by suicide when the defendant was around his early teens.

11. The defendant was removed from his mother’s care at the age of four and was placed into foster care until the age of 16. He is described as having “spent most of his childhood as a ward of the state” which “did not meet his emotional needs or provide him with adequate stability”, including not assisting him appropriately with his speech impairment and learning disabilities. One report indicates he may have experienced sexual abuse as a child when he was around five years old.

12. The defendant attended a “special school” in Blacktown where he had difficulty with reading and writing. He was bullied at school due to his speech impediment. Some reports indicate he left school in Years 7 or 8, while others indicate he left school in Year 9 or when he was 15 years old.

13. The defendant has limited reading and writing skills. In custody he has had some further education including completing a Certificate 1 in Hospitality, a Statement of Attainment in barbering, and work training courses in white card and food hygiene.

14. The defendant has limited employment history, including working part-time at the bookings desk of a boarding house where he once resided, at a “workshop”, and as a painter for a number of years.

15. The defendant has a brother living in the community. His mother and sisters have died.

Criminal history

16. The defendant has a long criminal history which began at 15 years of age. It includes sexual and violent offending, including sexual offending against children. His history also includes offences of stealing, various driving offences, break, enter and steal, set fire to property, steal motor vehicle, using offensive language and behaving in an offensive manner in a public place. In essence, the defendant has been charged with an offence almost yearly, with his longest period without a charge being approximately three years, between 1994 and 1997, coinciding with when he was in a nursing home.

17. His previous offending includes:

1. 1988 – sexual assault: The defendant was convicted of sexual assault pursuant to s 61E(1) of the Crimes Act 1900 (NSW) and was subject to a good behaviour bond for 18 months. The material suggests that this was in relation to a six year old male and related to an act of fellatio;

2. 1990 – aggravated indecent assault: Between November and December 1990, the defendant was residing at the home of the 9 year old female victim. On 28 December 1990, the victim complained to her parents that the defendant had been coming into her bedroom late at night, waking her up, and that he had touched the outside of her pants in the vaginal area and kissed her. The defendant admitted to this conduct and was sentenced to a fixed term of nine months.

3. 1991 – assault occasioning actual bodily harm whilst armed with offensive weapon: The defendant was sentenced to 40 hours’ community service.

4. 1997 – breach of apprehended domestic violence order (ADVO): The ADVO was issued for the protection of a female employee at Bellevue Park Nursing Home which was breached by the defendant pointing to her and yelling “fucking cunt” before approaching her in a threatening manner. The defendant had to be physically restrained from her and had threatened to burn her house down. He received an unconditional community service order for 125 hours.

5. 2000 – assault occasioning actual bodily harm: The defendant and the victim had been in a relationship for four months. They were out drinking with friends and continued drinking at the defendant’s house. An argument ensued and as the victim left the house, the defendant chased after her and tackled her, and then punched her up to six times in the stomach and rib area. An off-duty police officer went to the aid of the victim. The defendant was sentenced to six months’ imprisonment and an ADVO was made.

6. 2001 – contravene ADVO: The defendant received a good behaviour bond for 12 months for harassing the victim in relation to the above assault.

7. 2002 – contravene ADVO: The defendant received a good behaviour bond for 12 months for making threatening phone calls to a male victim in relation to family law issues between that man and the defendant’s then partner.

8. 2005 – common assault and resist officer in execution of duty: The defendant was at home with the victim, with whom he had been in a de facto relationship for three years. The defendant had been drinking alcohol. The defendant became abusive, calling the victim a “mole” and a “slut” and accused her of having sex with other men. He approached her, continued to abuse her, and grabbed her around the neck with one hand and began to choke her. He raised his fist and struck the victim with a closed fist on the right side of her face. The victim fled and went to the police. Police attended, and the defendant was aggressive to police and resisted arrest. The defendant was sentenced to a community service order for 150 hours.

9. 2006 – charges were withdrawn in relation to sexual intercourse and assault with act of indecency: These charges were withdrawn at court and related to the defendant’s adult half-sister who suffered from an intellectual disability and mental illness. The allegation was that the defendant sexually assaulted the complainant multiple times while she stayed with the defendant for one week. The allegations related to acts of fellatio, cunnilingus, masturbation, digital penetration, penile-vaginal sex and touching the complainant’s breasts and vagina. A recent account by the defendant was that his sister requested they have sex as she wanted a child, and he did not dispute having sex with his half-sister. The report of Laura Durkin, Psychologist, of 10 July 2024 notes that this is evidence of poor sexual boundaries and inappropriate decision making on the defendant’s part in relation to sexual activity.

10. 2009 – convicted person found with intent to commit indictable offence: While the victim was asleep in bed, the defendant removed the fly screen to his window and pushed open the bedroom window to enable access to the home. The victim awoke and saw the defendant’s head in the bedroom. He recognised the defendant as his neighbour of four years. On being challenged, the defendant fled. When later asked why he was breaking into his home, the defendant said he chased a strange man from the victim’s yard. The victim was scared for his sleeping daughter and called police. The defendant was convicted and was made subject to a good behaviour bond for 18 months.

11. June 2012 - possess child abuse material x 3:

1. Following a police search of his residence and a laptop as well as other devices, the defendant was charged with possession of images which spanned every scale of the Child Exploitation Tracking Scheme (“CETS”), involving children from under 6 months to 18 years, including pre-pubescent children engaging in acts of bestiality and sexual intercourse with adults. The defendant's then wife had said to police that the files were downloaded by the defendant and he would “view these every night”. Several thousand files were contained on three devices. Between 1000 and 2000 fell within categories 1 to 6 of the CETS scale, and it was estimated that child abuse image files formed approximately 10-20% of the total stored files.

2. During the investigation, police discovered communication between someone claiming to be “Troy Cooper” and a 13 year old girl from the United States. There were images of this girl, with her posing provocatively, naked and masturbating and several images of her naked with “Troy Cooper” written over her body. There was also an image of a young male person aged about 15 years purporting to be Troy Cooper.

3. The defendant was sentenced to 2 years’ imprisonment with a non-parole period of 16 months.

12. April to May 2016 – possess child abuse material and fail to comply with reporting obligations:

1. The defendant sold a mobile phone online in March 2016, which was collected by the purchaser about 4 weeks later. The new owner received messages on the phone sent and received by the defendant on his Facebook account from which he had not logged off on that phone. Police were informed and inspected the phone. The defendant had failed to declare a mobile phone number to police in accordance with his obligations under the Child Protection Register.

2. Following a police search of his residence, child abuse material was located on a USB hard drive and a mobile phone. In an interview with police, the defendant acknowledged he had accessed the Internet, knowing that breached his conditions. He denied communicating with persons under 18. Four images of child abuse material were located on a USB and other images were located including photographs and videos of the defendant masturbating. Child abuse material was also located on a mobile phone. Two computers were seized, and both contained images of young males and females engaged in sexual activity. These images were graded as 1, 2, 3 and 4 on the CETS scale. The defendant was convicted and sentenced to three years and six months’ imprisonment with a non-parole period of 2 years and 6 months.

13. 7 – 14 July 2019 - fail to comply with reporting obligations:

1. On 25 July 2019, whilst the defendant was on parole, the police conducted a home visit and whilst searching his mobile phone located email addresses which had not been disclosed to police as he was obliged to do under the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”). The emails were on a messaging application called Skout, and on the Gmail application and included an email address with the string “rayelliott” followed by a series of numbers. He indicated he had set this account up “today or something”, but police noted records for that email dated back to 7 July. The defendant stated he did not use that email.

2. He was charged with failing to comply with his reporting obligations. His parole was revoked, and he returned to full-time custody. He received a term of imprisonment for 9 months with a non-parole period of 5 months.

14. 6 December 2019 – fail to comply with reporting obligations: On 4 November 2019, he was released from custody. On 10 November 2019, he attended the police station to comply with his initial reporting obligations, and each condition was clearly explained. On 6 December 2019, police conducted a check at the defendant’s address. It was discovered that he had failed to disclose three email and four social media accounts. He stated he “forgot”. The police facts record that he showed he was well aware of his reporting obligations, “however, when spoken to about the additional email and social [media] accounts he became deceptive and deliberately lied to police.” The mobile phone inspection showed the accused used the social media accounts to contact males from overseas, requesting nude images whilst sending nude images of himself. He received a term of imprisonment of 15 months with a non-parole period of 8 months.

18. The defendant’s criminal history also discloses a history of non-compliance with failure to appear, breach of apprehended violence order, the issuance of bench warrants, and as noted above, failure to comply with reporting obligations. He has breached parole in the past and the index offending occurred whilst he was on parole for similar offences.

19. The defendant is a registerable person under the CPOR Act for life. Further, on 1 September 2000, at Campbelltown Local Court, the defendant was made subject to a Child Protection Prohibition Order (“CPPO”) for five years, pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (“CPOPO Act”).

Custodial history

20. The defendant has a long custodial history starting at the age of 18. It has been reported that he was raped, sexually harassed and “bashed” by other prisoners in 1992. Early reporting indicates concerns for the defendant’s wellbeing in custody, including that he appeared to be “developmentally disabled” and therefore “in jeopardy if placed in a main goal”.

21. Most recently, prior to being conditionally released, the defendant was in custody from 24 November 2020 to 1 September 2024. During this period in custody, at his request he was placed into the Special Management Area Placement, meaning that he was separated from the mainstream population as a vulnerable or at-risk inmate.

22. In his most recent period of custody, the defendant only incurred one institutional misconduct charge, on 2 September 2022. Records show that several pieces of granules kept on a piece of aluminium sheet, from a food tray, approximately 10 centimetres by 5 centimetres was found on a cardboard box under a desk in clear view in the defendant’s cell, which he shared with another inmate. It does not appear that he had a support person or lawyer when questioned. The defendant admitted ownership of the item and said he smoked it. He was taken off buy-ups for 7 days as punishment.

23. Between 4 April 2018 and 21 June 2019, the defendant completed the Self-regulation Program: Sexual offending (“SRP:SO”). The SRP:SO is a custody-based residential therapy program for men who have sexually abused adults and/or children and it is targeted to providing treatment to sex offenders with intellectual disability/cognitive impairment. It is recorded that the defendant’s participation was generally considered satisfactory, and that he always attended group sessions on time and tended to seek assistance from other program participants in order to complete the written tasks which he did in a timely manner. Although initially ambivalent about participating in the treatment, and reluctant to speak about his offences, he appeared to be enjoying the group sessions and the sense of connectedness and community provided. His speech impediment and concern about being judged by others impacted his participation in group discussions at times, and he was easily provoked by other group members which led to him sometimes refusing to participate, verbal aggression and occasionally walking out of the session in an agitated state.

20. In his most recent period of custody, although eligible to repeat the SRP:SO program, he declined to participate in this program or in other programs.

21. Prior to release from custody, the defendant was employed in the bakery in gaol five days per week between 3:30am and 11:00am. He was consistently reported to be completing his work well, with his work including using a gurney and cleaning tins. He enjoyed the work, felt motivated to work hard and was “looking forward to release and seeking employment”. The defendant was previously reported as saying that he would be interested in pursuing work in a bakery when he was released into the community.

2020 - the index offences, the subsequent fitness hearing, special hearing and imposition of a limiting term

26. The defendant was released from custody on 5 August 2020 on parole. On 24 November 2020, police attended the defendant’s residence at the Integrated Support Centre (“ISC”) for the purpose of conducting a home visit pursuant to the CPOR Act. Upon entering the defendant’s room, police located a second phone charger, before lifting up a pillow on his bed which revealed a black Samsung (not permitted under the rules of the ISC). The defendant handed it to police and gave the password to the phone, and stated “What can I say you got me” whilst throwing his hands up in the air.

27. Along with the defendant admitting that the black Samsung was his, he also admitted that usernames used to access certain accounts were not reported to the police, that he was aware of the CPPO prohibiting him from accessing the internet for any other purpose than gaining employment, banking and streaming services, and that he downloaded images and videos containing child abuse material from Facebook.

28. The digital analysis of the black Samsung by NSW Police resulted in the defendant being charged with the following offences:

1. Use carriage service to possess child abuse material (Commonwealth offence): between 28 October 2020 and 24 November 2020, the defendant accessed 26 images, depicting child abuse material from applications and websites including Viber, IMO, Twitter and Telegram, that included:

1. Facebook folder images consisting of 2 images of a boy under 10 in sexually suggestive poses wearing tight underwear;

2. Facebook Messenger folder consisting of 3 videos of child abuse material. The first involved a boy and girl under 10 years of age engaging in sexual intercourse. The second consisted of two fully clothed boys under 10 years of age playing with another boy’s penis. The third involved an adult male performing fellatio on a boy under 10 years of age;

3. “Messenger Lite” application consisting of 3 images of boys under the age of 10 in sexually suggestive poses;

4. “Telegram” folder consisting of 3 child abuse material videos, which involved 3 children under 10 years of age engaging in group sex, children under 10 years of age masturbating and two males under 10 years of age engaging in intercourse; and

5. “Hidden Vault” App (Hidden Boys) consisting of 5 child abuse material images involving two naked male children, two boys fully clothed with one having his hand on the other’s underwear, two boys naked with emojis covering their penis, a male child in a sexually suggestive pose and a male child in underwear in a sexually suggestive pose.

2. Use carriage service to access child abuse material (Commonwealth offence): 14 videos depicting child abuse material were located on the Black Samsung, including some of the material described above, using his ‘Facebook’ application.

3. Contravene prohibition order contrary to s 13(1) of the CPOPO Act. Firstly, in contravention of condition 8 of the CPPO, between 1 October and 23 November 2020, the defendant used the black Samsung to access the Internet for purposes other than those allowed by the CPPO by using applications such a Facebook, Facebook Messenger etc. Secondly, in contravention of condition 9 of the CPPO as the black Samsung contained images and videos of persons under the age of 18 years.

4. Offences of fail to comply with reporting obligations. The black Samsung indicated use of an undisclosed Facebook profile in the name of “Naval John Ray” as well as an undisclosed email address containing the string “raynaval” followed by a series of numbers; as well as other usernames including the SKOUT username “Ray Naval”; and Instagram username containing the string “Ray.naval” followed by a series of numbers. Also identified were MeetMe, Skype, Twitter, Snapchat and Viber usernames of similar character. The police facts indicate that the defendant deliberately hid these accounts from police who were managing him:

“Utilising his facebook account the accused was able to access the internet and download Child Abuse Material. On other sites listed above the accused has attempted and succeeded at times in engaging with persons of who’s ages at this point are unknown forwarding a number of images of his genitalia to these people.”

29. I also note that the police facts include the following in the “Antecedent” section:

“What is clear however from his behaviour is that he lacks impulse control and is highly active online on social media accounts which have enabled him to access Child Abuse Material through a third party not known at this time.

The accused has now been charged for the same offences three times since 2012. Regardless of whatever intellectual impairment he may have he has been able to source a second phone in an attempt to hide his illegal online activity from police and staff at the [ISC] in Campbelltown. The accused is believed to be networking with other residents at the ISC as evidenced by his communications online witnessed by police including one of the residents messaging him directly when Police showed up in the car park on this day.

The accused is unemployed and on NDIS benefits. The accused shows zero remorse for his offending behaviour and his threat to the community has been measured as ‘extreme’ by case officers managing at Campbelltown City PAC.”

30. When the defendant was interviewed, he made full admissions and told police that he acquired the child abuse material on Facebook Messenger.

31. On 15 February 2022, following a fitness hearing, his Honour Colefax DCJ found that on the balance of probabilities, the defendant was unfit to be tried and was unlikely to become fit within 12 months. His Honour ordered that the defendant be remanded in custody.

32. As the defendant faced both NSW and Commonwealth offences, two regimes needed to be complied with.

33. As to the State offences, on 24 February 2023, following a special hearing, his Honour Ingram DCJ found that, on the limited evidence available, the defendant committed the following offences, making a qualified finding of guilty pursuant to s 62(a) of the Act: two counts of contravene CPPO order contrary to s 13(1) of the CPOPO Act, and two counts of fail to comply with reporting obligations contrary to s 17(1) of the CPOR Act.

34. As to the Commonwealth offences, his Honour also determined there was a prima facie case against the defendant for the following offences for which he had been charged and that he would not become fit to be tried within 12 months, pursuant to s 20BA of the Crimes Act 1914 (Cth): use carriage service to access child abuse material in contravention of s 474.22(1) of the Criminal Code 1995 (Cth) and possess child abuse material in contravention of s 474.22A(1) of the Criminal Code 1995 (Cth).

35. Ingram DCJ made the following orders:

1. For the Commonwealth offences, orders for detention for two years to commence on 5 September 2021 and conclude on 4 September 2023¹;

2. For the State offences:

1. One count of contravene prohibition order: limiting term of 24 months commencing on 5 September 2022 and concluding on 4 September 2024;

2. One count of contravene prohibition order: limiting term of 12 months commencing on 5 March 2022 expiring on 4 March 2023;

3. One count of fail to comply with reporting obligations: limiting term of 18 months commencing on 5 September 2022 and concluding on 4 March 2024; and

4. One count of fail to comply with reporting obligations: limiting term of 9 months commencing on 5 June 2022 and concluding on 4 March 2023.

The Mental Health Review Tribunal and transition to the community

36. On 21 September 2022, the Mental Health Review Tribunal (“MHRT”) adjourned its review of the defendant due to delay with the special hearing.

37. On 22 December 2022, the MHRT determined that the defendant had not become fit be tried for the offences and would not become fit to be tried within 12 months of the Court’s findings made on 15 February 2022.

38. On 5 April 2023, following a review hearing conducted on 31 March 2023, the MHRT ordered that the defendant be detained at a correctional centre for care and treatment.

39. On 22 September 2023, following a further review, there was no change to the MHRT’s orders, and the defendant was to remain detained at a correctional centre. The MHRT noted that on 28 June 2023, the defendant was referred to the Community Safety Program (“CSP”) for release and transition planning. The MHRT determined that the defendant has a cognitive impairment (intellectual disability) and that there was no evidence to suggest he would become fit to be tried, and that he remained unfit to be tried.

40. On 14 March 2024, following a further review, there was no change to the MHRT’s orders, and the defendant was to remain detained at a correctional centre. Given the proximity of his release date, the MHRT adjourned the hearing for 8 weeks to allow proposed risk assessments and reports to be completed so that a structured plan could be formulated and put in place for the defendant’s release.

41. In May 2024, the defendant’s solicitor lodged an application for conditional release to the MHRT. This was heard on 18 July 2024 and adjourned to 22 August 2024 for further transition planning and for the development of an amended interim behaviour support plan (“BSP”).

42. On 26 August 2024, following a hearing on 22 August 2024, the MHRT ordered that the defendant be conditionally released to the community under the case management of the CSP. The CSP offers the defendant case management for the duration of his forensic patient status.

43. The conditions on which he was released included that he accept Ms Lea Mgeni of the CSP as his case manager; that he live at an approved address; that he cannot be absent overnight from his agreed accommodation without the approval of his case manager; that he be accompanied by at least one support staff member when he is outside of his approved accommodation and in the community; that he not access areas which are frequented by children, or where children are known to be except for the purpose of essential transactions; that he not associate with people under the age of 18 years old unless in the company of support staff; that he must not possess a mobile phone that has a camera and access to the internet; that he must not access internet browsing on any device unless supervised by staff, but that he be supported to access the internet for online banking and employment purposes and that he also be permitted to access TV streaming services.

44. In 2024, when ordering the defendant’s conditional release from custody, the MHRT accepted that while the defendant’s access to child abuse material was the primary concern (although not the only one), the MHRT was of the view that the proposed transition plan would be sufficient to guard against the risk of seriously endangering members of the public. The MHRT confirmed that the defendant was then subject to a guardianship order and an order under the CPOPO Act, and that “never before had he been offered the level of support now proposed”. The MHRT accepted that the defendant was to be on strict conditions of release, particularly directed to his access to children, social media and the internet.

45. The defendant was released from custody on 1 September 2024. He currently resides at a supported independent living (“SIL”) property funded through his NDIS plan and which is operated by an NDIS registered service provider which specialises in mental health. They are based in Western Sydney and provide support to those with psychosocial disability who require care in a trauma informed environment.

46. The property has four bedrooms. One is a used as a staff office and the remaining three are allocated for clients. The staff office is located at the front entrance which allows the staff to have visibility over residents’ whereabouts and behaviour. Staff are onsite 24 hours per day, 7 days a week.

47. The defendant has been assigned a few key workers including one worker who has had over 30 years’ experience as a psychiatric nurse and is qualified as an enrolled nurse with a diploma in nursing. The team leader holds a Certificate IV in community services and has extensive experience working with NDIS participants with complex mental health issues, challenging behaviours and forensic histories.

48. The defendant receives a Disability Support Pension. He is subject to a Financial Management Order under the NSW Trustee and Guardian and is also currently under a guardianship order, dated 31 May 2024, made by the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) which appointed the Public Guardian with accommodation, health care and services functions for the defendant for a period of 12 months.

Treatment and Rehabilitation Clinic and other services

49. The defendant was referred to a community-based intervention program, the Treatment and Rehabilitation Clinic (“TRC”) by the CSP. The program works with people who have cognitive impairment and have engaged in sexual offending behaviour. It provides multi-disciplinary and collaborative care focussed on recovery, rehabilitation and community safety of people assessed to exhibit high risk of sexual recidivism. Dr Kerri Eagle (Consultant Forensic Psychiatrist) and Ms Florence Gray-Weale (Psychologist) have been allocated to work with the defendant.

50. Amongst the statements he made at his initial assessment at the TRC on 16 September 2024, he expressed a desire not to return to custody, and that his most recent offending had occurred because he had no friends and was alone. He denied any current interest in accessing pornography. He was content with his housing but expressed an interest in working.

51. In addition to the TRC, the defendant commenced engagement with a speech pathologist, who he will attend upon fortnightly. The speech pathologist observed that he had more difficulty in communicating with people he did not see as often as they were unable to interpret what he is communicating.

Progress in the community

52. The defendant has not been the subject of any incidents or breaches of conditions since being released to the CSP. The provider has reported that through redirection the team has successfully persuaded the defendant away from behaviours that may increase the risk of re-offending such as visiting local pubs, consuming alcohol, purchasing a phone without staff guidance, or attempting to re-engage with individuals from custody.

53. The defendant has been described as having made “significant progress in his transition to the community”. He has been compliant with all house rules and orders from his case manager, has taken guidance from staff, and has attended all necessary appointments. He has established good relationships with staff and has become a valuable member of the household.

54. The NDIS provider has developed a plan for proposed employment for the defendant, involving maintaining and attending to the grounds of other related properties as a groundskeeper.

55. The NDIS provider has indicated:

“Should [the defendant] no longer be supported by the [CSP] as a forensic patient, our staff would not have concerns regarding his support within the community. To date, we have engaged a Behaviour Support Practitioner, Arshiar from Here4Change, who has indicated the capability to implement restrictive practices to mitigate risk factors and ensure compliance with ongoing court orders.”

Report of Dr Carollyne Youssef, Forensic Psychologist – 13 October 2024

56. Pursuant to the order made by Rigg J, Dr Youssef prepared her report, dated 13 October 2024, following a semi-structured clinical interview with the defendant on 27 September 2024 in person. She utilised a number of risk assessment tools. She was provided with material from Ms Murty and Ms Iskander as set out in her report, including criminal histories, police fact sheets, past reports, and prison case notes. She noted his significant speech impediment made him difficult to understand and that he was frequently asked to clarify his responses. She noted when asked about his offences he claimed they occurred in the past, he could not recall details and were “too long ago” despite recalling other specific aspects of events from that time.

57. Dr Youssef recorded that the defendant said he had no friends at present but denied feeling lonely, also noting that any friendships he has had appear to have been largely superficial with very little meaningful or reciprocal connection.

58. He previously identified as bisexual and now identifies as homosexual though later in the interview suggested he would be open to having sex with a woman. He reported what appeared to be a high libido, noting that when he had a sexual partner, he prefers to have sexual intercourse daily. She recorded that he said he first came across child abuse material in 2012 through Facebook, though was either unable or unwilling to provide further information. Dr Youssef stated he adamantly denied any sexual interest in child abuse material and said he thought it was “disgusting” and struggled to explain why he has repeatedly accessed this material. He denied any sexual attraction to children or adolescents.

59. There are no reports of mental illness. There are references though to mood disturbances, with him having reported dramatic mood swings, and being prone to temper outbursts and exploding when frustrated, with his speech impediment being a source of stress and frustration.

60. When asked about day-to-day functioning, the defendant said he could do “most things” on his own, but he struggled to explain details of how to cook or pay utilities. Dr Youssef noted a 2020 behavioural assessment from McRae and Hendricks which noted the defendant had severe difficulties with “understanding and communicating with others, specifically concentrating on tasks, finding solutions to day-to-day problems, learning new tasks and starting, maintaining and understanding conversation …. Moderate difficulties with getting along with other people including dealing with unfamiliar people, making new friends, maintaining friendships and getting along with the people they are close to… severe difficulty in the Participation in Society domain… significant barriers to engaging in the community and is severely impacted by health conditions and the consequences of these.”

61. Dr Youssef recorded that the defendant enjoyed drinking as it made his problems “go away”, and that he had reported to Durkin, in July 2024, that he would drink up to three cartons of beer most days. He understood that he is not permitted to drink with his current conditions.

62. He described his group home as “not too bad”, but would like more freedom, and feels like he is being treated “like a baby”. Dr Youssef records that he emphasised that if he “fuck[s] up, I fuck up … no one can stop me”. Dr Youssef recorded the following:

“He expressed his general discontent with the restrictions placed upon him such as him not being able to have a phone with a camera or with internet access: ‘too many rules, no internet, no camera’. Though he later noted that this might mitigate the chance of him getting into trouble again. [The defendant] said that he would like to get internet access as soon as he can and understood that it would be for very specific reasons such as internet banking and Centrelink access.”

63. When asked about his access of child abuse material, he said that he was “bored, no friends, got them from a group… what do they want me to do?!” When asked to clarify what he meant, he said he was added to a Facebook group where the child abuse material files were and despite removing himself, he continued being added to it. He adamantly denied that he ever searched for the material.

64. When asked about the breaches, Dr Youssef records:

“[The defendant] grinned, noting that he was aware of his obligations of reporting usernames, passwords, phones etc, however he does not like telling the police this information and said he does not like speaking with police at all. [The defendant] was able to tell me his reporting obligations and the time frames to report any changes. He said he just chose not to tell the police, shrugging his shoulders when asked why. He feels that it is easier now as his carers disclose these details on his behalf and as such, he does not have to interact with police.”

65. Dr Youssef made the following findings:

1. She gave the defendant a score of 7 on the STATIC-99R placing him in the “Well Above Average” risk category or Level IVb, relative to other male sexual offenders.

2. The defendant’s total score on the STABLE-2007 was 17, reflecting a ‘High’ level of stable dynamic needs.

3. Combining the STABLE-2007 with the STATIC-99R to provide a composite assessment of risk/needs gave the defendant a composite score in the “Well Above Average” category.

4. Utilising the Risk for Sexual Violence Protocol-Version 2 (“RSVP-V2”) tool, Dr Youssef identified the following risk factors as being relevant:

1. Chronicity of sexual offending with an offence history dating back to 1988, with multiple charges and convictions since then. His offending can be considered persistent and frequent as well as diverse in that he has offended against both a male and female child, has non-contact offences for child abuse material and has contacted a child online.

2. The defendant has and continues to engage in extreme minimisation or denial of his sexual offending behaviour.

3. The defendant continues to have problems with self-awareness, being serious problems stemming from a failure to develop reasonable insight into his own general mental processes and reactions as they relate to his risk of sexual offending. He also has ongoing difficulties with stress and coping and struggles to use adaptive coping strategies in response to stressors.

4. Although the defendant denies an interest in children, taking his offence history into account, it appears probably that there is a sexual interest in children, specifically a non-exclusive paedophilic interest. The defendant has previously admitted to having sexual thoughts about children. Given the defendant’s description of his libido historically, it appears likely that he had a high sex drive, and this was likely relevant to his offending.

5. The defendant has shown a failure to establish and maintain stable and positive intimate relationships as well as friendships, often feeling rejected and ostracised.

6. The defendant has largely been on the Disability Pension and has had minimal work experience in the community. This likely contributes to a lack of structure and routine and may also have contributed to his substance misuse. This is likely relevant to his offending behaviour.

7. The defendant has a history of failing to seek out, participate, comply or benefit from rehabilitative services. He does not seem to believe he requires any specific intervention, which implies that he may be at the pre-contemplative stage of change.

5. Dr Youssef assessed the defendant’s risk of violent recidivism using an actuarial risk assessment, the Violence Risk Appraisal Guide – Revised. His score placed him in the highest of the nine “risk bin” categories.

6. Dr Youssef also used the Historical Clinical Risk Management-20^V3 in relation to evaluating the defendant’s current level of risk for violent offending. She identified salient risk factors including historical involvement in multiple acts of physical violence, including assaults and has also had a pattern of problems with other antisocial behaviour, traumatic childhood experience, and problems complying with and benefiting from treatment and supervision. Relevant clinical factors include problems with insight; the defendant’s cognitive impairment; poor problem solving and difficulties with initiating and maintaining relationships with others; and a clear reluctance to engage with services and does not see a need to engage in any interventions.

7. Dr Youssef opined:

“Regarding [the defendant’s] living situation, no problems are anticipated if he remains engaged with NDIS supports. Should he not be subject to an extension order, and should he decide to decline NDIS supports, even with a [Public Guardian] this may cause instability in his living situation which will destabilise [the defendant] and can elevate his risk.

[…]

[The defendant’s] most robust protective factors stem from external regulations. A restriction on [the defendant’s] access to a device with internet connectivity will be important until supports are established, and he develops a routine, and better coping strategies. It is also anticipated that contributing to [the defendant’s] stability will be his regular contact with the CSP and NDIS supports, who oversee his compliance with his conditions and sobriety, fostering a sense of connection and support for him, should he be made subject to a further order.”

8. Dr Youssef opined that were the defendant to reoffend, it is most likely to be an online offence, with either further child abuse material related offending and/or online contact with a child, most likely a female closer to pubescence, but could also be a male. He may present himself as an adolescent in a bid to disarm the victim. The factors most likely to increase his risk of online offending is access to a device with internet connectivity, isolation and loneliness, sexual preoccupation, use of sex to cope, a desire for sexual gratification and boredom. He may progress to meet planning to meet a child in person, thus graduating to a possible contact offence.

9. Dr Youssef further opined that if the defendant were to have access to a prepubescent child on an ongoing basis, or arrange to meet a child through online contact, either directly or possibly through another adult, he may commit a contact sexual offence, again most likely a female. He may offend against a male. The offending is likely to involve sexual touching with the potential to be more intrusive and may escalate to digital or penile penetration. It may be motivated by sexual gratification and proximity seeking.

10. As to the risk of violent offending, the defendant would most likely engage in interpersonal violence against a partner or someone known to him. He may perceive that he has been slighted, disrespected, undermined, obstructed from achieving his goals or challenged in some way. He would likely be intoxicated, either at home or in public, and is unlikely to be deterred by the presence of witnesses. It may involve punching or choking and is likely to be reactive and impulsive.

66. Dr Youssef noted that it has been some time since the defendant has committed a violent offence, of the three offence types identified, he is most likely to reoffend via internet-based offending, though another contact sexual offence or violent offence cannot be ruled out given his history.

67. In relation to whether an extension order should be made, Dr Youssef opined:

“[The defendant’s] strongest protective factor is external control and support [..] As such, should [the defendant] continue to be subject to a forensic patient order, his risk, in addition to the nature and likelihood of harm to others would be mitigated through conditions (e.g., alcohol abstinence, accommodation, routine and structure, device/internet restrictions), support (e.g., engagement with specialised allied health and community services, engagement with NDIS) and ongoing oversight and case management (e.g., CSP, MHRT).”

68. As to the issue of least restrictive means, Dr Youssef stated that there do not appear to be any other less restrictive means available to manage his risk at this stage, either alone or in combination, without an extended order. An extended order will provide an opportunity for the defendant to address his outstanding dynamic risk factors whilst increasing his protective factors. There would be an opportunity for conditions and management provisions (e.g., abstinence from alcohol, conditions to attend intervention, monitoring and development of community supports) to be maintained to support the defendant, with regular reviews allowing for amendments to be made as required. It is unlikely that the defendant will receive and/or comply with the required level of treatment and supervision if he were to have no order in place.

69. Dr Youssef recommended an extension period of two years. She pointed to his struggles in the community resulting in frequent breaches and reoffending. He requires a period of intensive support which would only be possible with an extension of his order. An extension order of at last two years provides an opportunity for the defendant to engage in the intensive support.

Report of Adjunct Associate Professor Rajan Darjee – Consultant Forensic Psychiatrist – 13 October 2024

70. Pursuant to the order made by Rigg J, Prof Darjee interviewed the defendant for about an hour by way of audio-visual link and had been provided with the same material as Dr Youssef. He prepared a report dated 13 October 2024, in which he made the following findings:

1. Using the STATIC-99R, Prof Darjee scored the defendant as seven, placing him in the “well above average” risk group.

2. Using the RSVP-V2 tool, Prof Darjee considered the most highly relevant perpetrator factors were: problems with self-awareness; problems with stress and coping; problems due to child abuse; sexual deviance (paedophilic disorder); major mental disorder (intellectual disability); substance misuse*; intimate relationship problems; antisocial attitudes* living circumstances*; problems with treatment*; and problems with supervision*. [Those with an asterisk exhibited some evidence of some recent amelioration albeit within contained circumstances].

3. Prof Darjee considered the most likely risk scenario as follows:

“If he were to reoffend sexually it is most likely that he would commit child sexual abuse material offences, as he has done on the last three episodes when he has sexually offended. The next most likely scenario is that he will engage with children over social media to interact sexually and exchange sexual images, but probably not to meet them offline. The least likely, although still plausible, sexual risk scenario is him committing a contact sexual offence against a male or female child who he has access to in a domestic setting. As mentioned above, in men with a history of both online and offline child sexual offending by far the most common pattern is for them to commit offline contact offences as teenagers or young adults and then to commit online offences when they are older. It would seem unlikely that he would groom children offline as he lacks the social skills, or that he would attempt to approach or abduct a child in a public setting as he lacks the skills to do this. It is unlikely that he would use a significant degree of physical violence to commit a sexual offence.”

71. As to the question of risk, Prof Darjee summarised his position as follows:

“Overall, in my view, considering both the actuarial and [structured professional judgement] risk instrument ratings above, if he was not subject to any management or support in the community he would pose a high risk of committing a further sexual offence, which would most likely be an online child sexual abuse material offence, could be an online child sexual solicitation offence, and might be a contact child sexual offence. The last of these could clearly cause serious sexual harm, whilst the first would involve serious sexual harm perpetrated by someone else but not directly perpetrated by him, and the second could cause serious sexual harm to a child but not through a direct physical interaction. Given his previous pattern of offending and the risk factors identified a further sexual offence would likely happen imminently.

If he was not a forensic patient, but was under police measures (reporting obligations and a prohibition order) and had appropriate disability supports, he would pose a moderate risk of further sexual offending, which would most likely [be] an online child sexual abuse material offence, could be an online child sexual solicitation, but it is highly unlikely it would be a contact child sexual offence, given the monitoring and supports that would be in place. He would therefore be unlikely to cause direct serious sexual harm. The risk of sexual offending could be imminent.

If he was also a forensic patient, there would be a low risk of sexual offending, a low risk of causing serious harm, and further sexual offending would not be considered imminent given the level of support, intervention, monitoring and restrictions in place.

Therefore, overall, he is considered to pose a high risk, as he requires a high level of case prioritisation to prevent further sexual offending.”

72. As to the question of the least restrictive means to manage that risk, Prof Darjee stated:

“In my view he needs to remain a forensic patient during this period of transition to, and establishment in, the community for the following reasons:

- This will allow for a comprehensive multi-agency and multi-disciplinary risk management plan involving appropriate restrictions, monitoring treatment, support and supervision, with each agency and discipline focussing on their statutory roles and obligations, while keeping a holistic focus on both managing the risk he poses of sexual offending and providing the supports and services to allow him to function at an optimum level in the community without returning to sexual offending.

- NDIS services alone cannot prioritise managing the risk of sexual offending as their primary focus is rightly disability supports, and such supports will not at this point on their own sufficiently mitigate the risk of sexual offending.

- Although police measures can impose monitoring and restrictions specifically focussed on preventing sexual offending, they do not provide for or necessarily work in an integrated way with necessary treatment, supports and supervision.

- As set out in the risk assessment above, other measures will not reduce the risk sufficiently at present, and previously when he returned to the community while on parole and subject to police measures, he soon returned to online child sexual abuse material offending.”

73. In his report, Prof Darjee stated that in his view the extension order needed to be at least a year to establish him in the community. Further, he stated that a period of two years on an extension order will allow for the comprehensive risk management plan which is necessary at the start of his time back in the community and will also allow for testing of how well his risk can eventually be managed without the extension order.

Concurrent oral evidence of the experts on 6 November 2024

74. Both experts confirmed that an extension order would provide the optimal and least restrictive outcome for the defendant and that his risk could not be adequately managed by other less restrictive means. If no extension order were made, the defendant would not have the benefit of the overarching care provided by the CSP and nor would he be able to undertake the 12 week psychoeducational program offered by the TRC. The experts were of the view that the defendant needed both of those things. Whilst some support would be provided by the NDIS provider, such support was qualitatively different as the NDIS provider was not set in stone, involvement was voluntary and the NDIS provider could not enforce any particular conduct.

75. Further, whilst the other orders already in place imposed important restrictions on the defendant’s conduct, because of his intellectual disability, he needed assistance and support in order to manage his behaviour and comply with the various restrictions imposed upon him. Without such support, a breach would be more likely which could amount to a criminal offence. A continued forensic order would provide important oversight of the defendant, where his needs could be managed in an overarching way.

76. Dr Youssef also highlighted, in her oral evidence, as she had in her report, that the defendant had some anti-authoritarian attitudes and some reluctance to engage with the police.

77. Both experts ultimately confirmed, in light of the cognitive impairments suffered by the defendant, that a two year extension order would be the least restrictive (as well as the optimal) length of order which would allow the defendant to effectively transition to the community.

The legislative scheme

78. As set out in the long title, the Act is:

“An Act with respect to criminal proceedings involving persons with a mental health impairment or cognitive impairment and the care, treatment and control of those persons; and for other purposes”.

79. The first four Parts of the Act deal with preliminary issues including the definition of certain terms, summary proceedings, defence of mental health impairment or cognitive impairment and fitness to stand trial. Part 5 is headed “Forensic patients and correctional patients”. Part 6 is headed “Extension of status as forensic patient”. Part 7 is headed “Tribunal proceedings”.

80. Division 1 of Pt 5 is headed “General principles and concepts”. Section 69 sets out the objects for Pt 5 and s 69(2) expressly extends the objects of Pt 5 to the provisions of Pt 6. Section 69 reads (relevantly) as follows:

69   Objects

(1)  The objects of this Part are as follows—

(a)  to protect the safety of members of the public,

[…]

(f)  to protect the safety of victims of forensic patients and acknowledge the harm done to victims.

(2) The objects of this Part extend to the provisions of Part 6.

81. The definition of a “forensic patient” is found within Pt 5 of the Act in s 72(1). Relevantly, the definition includes a person who has been given a limiting term after a special hearing (including a person who is subsequently subject to an extension or interim extension order) and who is detained in a mental health facility: s 72(1)(b) of the Act.

82. Section 121 of the Act, which is found within Pt 6, empowers this Court to make an extension order – being an order to extend a person’s status as a forensic patient.

83. The test the Court must apply when deciding whether to make an extension order is set out in s 122, as follows:

122   Forensic patients in respect of whom extension orders may be made

(1)  A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that—

(a)  the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and

(b)  the risk cannot be adequately managed by other less restrictive means.

(2)  The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.

Note—

Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.

84. It is accepted that the structure and language of the statutory regime under the Act closely parallels that of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the HRO Act”), which empowers the Court to order a “high risk” offender to be subject to a continuing detention order or an extended supervision order. As such, authorities dealing with the HRO Act are helpful in elucidating the provisions in the Act. Unlike the HRO Act, however, the Act does not empower the Court to make specific orders about the care, treatment or control of a forensic patient. Such matters are left to the Tribunal.

84. Section 127(1) of the Act provides that a Court may determine an application for an extension order by making the order or dismissing the application. Section 127(2) provides that the Court must have regard to various matters listed in that subsection in addition to any other matter it considers relevant.

85. Section 128 provides that an extension order can be made for a period up to but not exceeding five years from the date the order commences.

Satisfaction to a “high degree of probability”

87. As set out in s 122(2) above, in determining satisfaction to a “high degree of probability”, I am not required to be satisfied that the risk of the defendant causing serious harm to others is more likely than not in order to determine that he poses an unacceptable risk of causing serious harm to others. Nor am I required to be satisfied that it is more likely than not that the risk he poses cannot be adequately managed by other less restrictive means.

88. The first limb of the test – “unacceptable risk of causing serious harm to others” is provided for in s 122(1)(a). Neither of the terms “unacceptable risk” or “serious harm” are defined in the Act.

89. For the purposes of s 122(1)(a), whether or not the defendant poses an "unacceptable risk of causing serious harm to others" is to be assessed independently from s 122(1)(b). That is, the assessment must be made on the assumption that the defendant would be neither a forensic patient nor an involuntary patient and would be released into the community at the end of his extension order without any oversight by the courts or the Tribunal: Attorney General for New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [10] (R A Hulme J).

90. The meaning of “unacceptable risk” was considered in the context of high risk offenders by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51]:

“As the respondent pointed out in its submissions, by reference to dictionary definitions, the word ‘unacceptable’ requires context in which, or parameters against which, the ‘unacceptable’ risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is ‘so far from a required standard, norm expectation, etc as not to be allowed’. The Oxford Dictionary defines the word by reference to its antonym ‘acceptable’. Something is ‘acceptable’ if it is ‘tolerable or allowable, not a cause for concern; within prescribed parameters’.

What the court, therefore, must find to be unacceptable is the ‘risk’ that the offender poses ‘of committing a serious violence offence if … not kept under supervision’. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

91. In Lynn, Basten JA stated at [126]:

“The nature of the risk […] posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community […]”

92. The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the objects of s 69 of the Act and must have regard to the matters listed non-exhaustively in s 127(2). Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

93. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]–[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

94. The meaning of “serious harm” is, as noted above, undefined in the Act, although the same term is used in s 14 of the Mental Health Act 2007 (NSW) ("Mental Health Act"). The phrase “serious harm” is not defined by the Mental Health Act either. It has been accepted that it includes physical or psychological harm, albeit subject to the requirement that the harm be “serious”: see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] (R A Hulme J).

The threshold statutory criteria

95. The Attorney General may apply to the Supreme Court for an Extension Order against a forensic patient (s 123 of the Act). I find that an application for an Extension Order may be made as the defendant is currently a forensic patient who was subject to an existing limiting term at the time of the application (s 124 (1)(a)). The application was made less than six months before the expiry of the limiting term (s 124(2)). The defendant is a forensic patient as he falls within s 72(1)(b) of the Act as he is a person for whom a limiting term was nominated after a special hearing. The plaintiff’s application is supported by documentation addressing the matters referred to in s 127(2). This includes reports assessing the defendant’s risk of causing serious harm to others, addressing the need for ongoing management of the defendant as a forensic patient and giving reasons why the defendant’s risk of causing serious harm to others cannot be adequately managed by other less restrictive means (s 125).

Relevant matters to be considered

96. I must have regard to the non-exhaustive list of matters listed in s 127(2) of the Act as follows:

127 Determination of application for extension orders

[…]

(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant—

(a)  the safety of the community,

(b)  the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,

(c)  the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),

(d)  any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

(e)  any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

(f)  any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,

(g)  the level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),

(h)  the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,

(i)  any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

[…]

97. I now outline the material I have taken into account, in accordance with s 127(2) of the Act, in reaching my conclusion.

The safety of the community: s 127(2)(a)

98. As noted, both the court appointed experts opined that the most likely offending to be committed by the defendant if he were no longer a forensic patient would be online offending involving child abuse material, albeit there was also a chance he may commit contact offending, or perhaps attempt to contact a child or children online.

99. Given the expert evidence, and assuming, conservatively, that the most likely conduct to be committed by the defendant would be child abuse material offending (in the nature of possession or access), a question arises as to whether or not such offending would affect the safety of the community, and, relatedly, whether the defendant would pose an unacceptable risk of causing serious harm to others by such conduct pursuant to s 122(1)(a) of the Act. It is convenient to discuss these two related issues together.

100. At the hearing, I requested further assistance in relation to this point, and received helpful supplementary written submissions.

101. I agree with the defendant’s submission that the nature of the child abuse material offending is relevant to the court’s evaluation, and that evidence in the circumstances of each case should be examined before the requisite high degree of satisfaction pursuant to s 122(1)(a) can be reached. It can be noted that child abuse material can range from sexual posing by a child fully clothed to penetrative sexual activity and activity which may also involve sadism or an animal. It can further be noted that the defendant has possessed child abuse material in the past which includes some of the gravest seriousness.

102. As to the defendant’s submission that the focus should be on “direct harm to others” as opposed to Prof Darjee’s assessment of child abuse material involving “indirect harm to others”, I am not persuaded that the introduction of the terms “direct” and “indirect” is useful when those terms are not used in the legislation.

103. It can be remembered that not only is “the safety of the community” utilised in s 127(2)(a), one of the objects of the relevant part in s 69(1)(a) of the Act is to protect the safety of members of the public. It can be observed that some the most vulnerable members of the public are children.

104. In an earlier portion of this judgment, I set out in some detail the conduct undertaken in the past by the defendant which constituted his child abuse material offending. In my view, that clearly showed that the defendant went to some real effort to access and/or possess child abuse material which, as I have noted, included some child abuse material of a very serious nature. His offending between 2012 and 2020 showed persistence and a measure of sophistication given it involved multiple addresses, accounts and handles which were designed not to be linked back to him.

105. It can also be noted that the defendant is a recidivist child abuse material offender, now having been brought before court three times over an eight year period notwithstanding custodial sentences. He also has a history of deceiving police in relation to mobile phone ownership and email and app subscriptions which involve names other than his own. He has a history of breaching restrictions imposed upon him within weeks of release from custody. All of these matters inform my assessment of risk.

106. As the criminal sentencing judgments and appellate decisions in NSW have made clear, even possession (that is, not the manufacturing or procuring) of child abuse material perpetuates the market for such material.

107. An important authority in this area is R v Porte [2015] NSWCCA 174. At [58]–[70], the following was stated:

“In New South Wales, an increase in the maximum penalty occurred in 2008 for the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW). The maximum penalty for that offence was increased from five years’ imprisonment to 10 years’ imprisonment. In explaining this increase in the maximum penalty, the Attorney General, Mr Hatzistergos, said in the Second Reading Speech for the Crimes Amendment (Sexual Offences) Bill 2008 (Hansard, Legislative Council, 26 November 2008):

‘The New South Wales offences are currently split into possession, which carries a five-year penalty, and production or dissemination, which carries a 10-year penalty. The bill increases the maximum penalty for possession of child pornographic material to 10 years. These substantial penalties send a strong message to the courts that child pornography should not be tolerated. This penalty reflects the seriousness of this crime. Any person who knowingly possesses images of a child being sexually abused is perpetuating such abuse and also providing a continuing market for such material. The Government is of the view that the criminality involved in that behaviour is the same as if the offender had produced the material themselves.’ [(Emphasis added.)]

[…]

At the same time as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.

The comity principle has been applied in establishing sentencing principles with respect to child pornography offences: R v Gent at 36 [29]. In Director of Public Prosecutions (Cth) v D’Allesandro (‘D’Alessandro’) [2010] VSCA 60; 26 VR 477, Harper JA (Redlich JA and Williams AJA agreeing) said at 483-484 [21] (references omitted):

‘When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Forthly, that those who make up that marked cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s propr good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:

(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.’

These principles have been frequently repeated since D’Alessandro: Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 at 261-262 [96]-[101]; Director of Public Prosecutions v Smith [2010] VSCA 215 at [23]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; R v Linardon [2014] NSWCCA 247 at [58]; R v Martin [2014] NSWCCA 283 at [37].

A helpful 2010 publication, issued by the Judicial Commission of New South Wales, observed that intermediate appellate courts had recognised that the prevalence of child pornography offences justified strongly deterrent sentences, and that the Internet accounts for the increase in offending: Mizzi, Gotsis and Poletti, “Sentencing Offenders Convicted of Child Pornography and Child Abuse Material Offences”, Judicial Commission of New South Wales, Monograph 34, September 2010, paragraph 2.2.

After a thorough examination of authorities in Minehan v R (a case dealing with Commonwealth and State offences, including dissemination and grooming charges as well as access and possession offences), RA Hulme J (Macfarlan JA and myself agreeing) said at 260-261 [94]-[95]:

‘94 Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:

1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. The proximity of the offender’s activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

95 This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness.’

The Minehan v R factors have been applied in a number of later decisions: R v Linardon at [53]; R v Martin at [34]; James v R [2015] NSWCCA 97 at [23].

A number of additional propositions should be kept in mind.

In this case, the Respondent was to be sentenced for accessing child pornography material and possession of child abuse material. He was not charged with sale, distribution or dissemination of material. The absence of features of this type do not operate to mitigate penalty for a possession offence: Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at 464-465 [49]-[50]; R v Booth [2009] NSWCCA 89 at [46]; Warner, “Sentencing for Child Pornography” (2010) 84 ALJ 384 at 385.

The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Heathcote (A Pseudonym) v R at [40].

The courts have stressed that possession of child pornography is not a victimless crime: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 52 [9]; R v Gent at 38 [33]; D’Alessandro at 484 [23]; R v Martin at [43].

An additional feature of harm done to victims of child pornography offences was referred to by Professor Kate Warner (as her Excellency then was) in ‘Sentencing for Child Pornography’ (2010) 84 ALJ 384 at 385 (references omitted):

‘The damage done to the children so abused can be, and undoubtedly often is, profound. In addition to the physical and psychological harm from the abuse itself, the New South Wales Sentencing Council has explained that harm may also result from the knowledge, as they grow older, that the material may remain in circulation, heightening the shame and distress associated with being exploited when young and vulnerable’

In an extract cited frequently in later decisions, Simpson J (as her Honour then was) (with the agreement of McClellan CJ at CL and Howie J), encapsulated in R v Booth at [39]-[44], the particular vice of child pornography offences and the sentencing principles which have been deployed as a response by the Courts:

‘39 A number of previous decisions of this and other appellate courts have found that, in respect of offences of child pornography, general deterrence is, at least, a significant element of the sentencing process: R v Gent; Assheton v R [2002] WASCA 209; 132 A Crim R 237; Mouscas v R [2008] NSWCCA 181. In Assheton, indeed, general deterrence was said to be ‘the paramount consideration’. This view was endorsed in Gent.

40 I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.

41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

42 What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.

44 It is for that reason that this is a crime in respect of which general deterrence is of particular significance.’”

108. Further, as stated in R v De Leeuw [2015] NSWCCA 183 at [72] (g) and (h):

“The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40]

There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].”

109. Further, as was earlier stated by Simpson J in R v Booth [2009] NSWCCA 89 at [40]–[43]:

“[…] Possession of child pornography is a callous and predatory crime.

In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.”

110. The defendant continued to commit child abuse material offences notwithstanding the various restrictions on his conduct and the negative consequences that have ensued as a result. Given his past conduct, I am of the view that if he were not a forensic patient he would likely continue to access and/or possess child abuse material of a serious nature.

111. In light of this finding, the question I must consider is whether I am satisfied to a high degree of probability that he would pose an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.

112. As noted above, it is accepted that serious harm can include psychological harm.

113. In my view, there is not only an unacceptable risk of serious psychological harm to a child participant each time an image or video of that child (involving, for instance, penetrative sexual conduct with an adult or animal, or other sadistic conduct) is viewed, copied, shared or accessed (even if that be many years later when that child was an adult). The perpetuation of an active market in child abuse material, assisted by those, such as the defendant, who possess or access such material, also creates an unacceptable risk of causing serious physical and/or psychological harm to other vulnerable children who may be used in order to create new material to feed that depraved market.

114. I note too that Lonergan J in Attorney General of New South Wales v Lane (Final) [2019] NSWSC 1460 observed at [66] “serious harm” in the context of this legislation can include psychological harm to children who are made the subject of child abuse material.

115. It can also be observed in this case that the defendant had made contact with a child for the purposes of online sexual interactions. This is also relevant when considering the level of risk posed by the defendant of causing serious harm. As also noted above, the defendant has also used social media accounts to contact males from overseas with nude images being requested or provided. Given his clear sexual interest in children, there is an unacceptable risk such contact could extend to children if he were not appropriately supervised.

Reports of persons appointed under ss 126(5) and 125(b), and any other psychiatric, psychological or medical report in support of the application or by the forensic patient: ss 127(2)(b), (c) and (d)

116. As set out in some detail above, I have considered the reports of the court appointed psychologist and psychiatrist in some detail (that is Dr Youssef and Prof Darjee). I note too that in the course of their reports they covered the material from earlier reports of other psychologists and psychiatrists, which I have considered, and which aligns with their observations and conclusions. It is not necessary to separately set out those earlier reports.

Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application: s 127(2)(e)

117. I have considered the Tribunal’s decision as set out above at [42]—[44].

The level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act): s 127(2)(g)

118. The defendant was sanctioned for some limited misconduct whilst in custody, albeit he has not incurred any breaches of discipline since his last MHRT hearing on 22 September 2023.

The views of the court that imposed the limiting term on the forensic patient at the time the limiting term was imposed: s 127(2)(h)

119. Judge Ingram observed that the Commonwealth offence was a serious instance of offending given that the defendant used the carriage service on a number of occasions during the relevant period and used multiple websites.

120. Whilst Judge Ingram accepted that the quantity of child abuse material possessed was at the lower end of the spectrum, his Honour noted “there were […] a number of different children depicted in the imagery and thereby exploited by the material and there were a variety of sexual acts or sexual conduct displayed involving some very significant depravity, as well as elements of potential physical harm”. The judge noted the contravene prohibition order offence relating to internet access to be of some real seriousness. His Honour noted that the breaches related to the access and downloading of child abuse material, but also that they were “not momentary but continued over a period of time and were, in that sense, calculated, and in the Court’s view, quite serious breaches”.

121. The contravene prohibition order offence relating to possession of videos or images of persons under the age of 18 was said not be of insignificant seriousness, given a number of such videos and images were child abuse material.

122. The failure to comply with reporting obligations offences relating to failure to report the Facebook profile “Naval John Ray” was of not insubstantial objective seriousness, given the username did not disclose the defendant’s identity and was used by him to access and download child abuse material.

123. The failure to comply with reporting obligations offence relating to the failure to report the email address and SKOUT username incorporating “Ray Naval” was of moderate objective seriousness given the defendant did not use SKOUT to otherwise engage in criminal conduct (aside from breaching his prohibition order and reporting obligations).

124. Judge Ingram found that the defendant had poor prospects of rehabilitation, relying on the high and medium-high risk results from the STATIC-99R and LSI-R instruments. His Honour also had regard to evidence that the defendant “does not satisfactorily engage with treatment programs and his responsivity to supervision has been poor and marked with noncompliance” (in particular noting the index offending was committed while he was on parole for offences of a similar genre).

125. As to the defendant’s objective case, it was accepted that he had a cognitive impairment within the moderate range of intellectual disability and had a deprived upbringing. It was accepted that his intellectual disability largely rendered him an inappropriate vehicle for general deterrence.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others: s 127(2)(i)

126. As noted above, the defendant has an extensive and varied criminal history including not only child abuse material offences, but also violent offending, theft, and driving offences.

127. He also has an alcohol use disorder (considered to be in remission in a controlled environment); probable paedophilic disorder, together with a cognitive impairment, mood disturbances, and is prone to temper outbursts associated in part with frustration arising from his speech impediment.

The extension order should be made

128. On the basis of the above matters, including the defendant’s persistent criminal history, his cognitive impairment, the nature and circumstances of the index offences, and the opinions of the court appointed experts, I am satisfied to a high degree of probability that:

1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and

2. the risk cannot be adequately managed by other less restrictive means.

129. Further, having regard to the matters in s 127(2) referred to above, and keeping in mind the objects of Pt 6 of the Act as set out in s 69, I am of the view that the extension order should be made for 2 years.

130. In particular, I note that whilst there are other restrictions to which the defendant is subject, as well as support provided by the NDIS, without an extension order the defendant would not get the required assistance to help him abide by the various restrictions. Further, the NDIS support is not guaranteed, and nor can it mandate behaviour. In addition, without an extension order, he would not have access to helpful therapeutic interventions provided by the CSP designed to provide effective support to transition to community living. Not only has he exhibited repeated and varied criminal conduct since the age of 15, since 2012 he has continued to possess and/or access child abuse material of a serious nature despite restrictions in place designed to prevent him from doing so.

Orders

131. Accordingly, I make the following orders:

1. Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that Mr Raymond John Cooper (also known as Mr Raymond Elliott) be subject to an order for the extension of his status as a forensic patient for a period of two (2) years commencing on 4 December 2024 to continue to 3 December 2026.

2. Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

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Amendments

03 December 2024 - Amended representation

Decision last updated: 03 December 2024